CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE?

1. CHAP. 3 -- RESUMED:THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? Prof. JANICKE 2019

2. BASIC OPERATION OF THE RULE EXCLUDING HEARSAY • A WITNESS SHOULD TESTIFY WHAT SHE SAW • A WITNESS SHOULD USUALLY NOT TESTIFY TO WHAT ANYONE SAID OR WROTE BEFORE TRIAL, EXCEPT WHAT THE OTHER SIDE SAID/WROTE • EXCEPT FOR THE OTHER SIDE’S DOCUMENTS, A DOCUMENT SHOULD USUALLY NOT BE ADMITTED ON THE FACTS Chap. 3 -- Hearsay Evidence

3. MEANING OF HEARSAY • USUALLY, NO TESTIMONY IS ALLOWED CONCERNING ANY HUMAN UTTERANCE THAT: • CONTAINS A STATEMENT [i.e., A RECITATION OF FACT]; and • WAS MADE OUTSIDE THE PRESENT HEARING; and • IS OFFERED TO HELP IN PROVING THAT THE FACT STATED IN THE STATEMENT ISTRUE Chap. 3 -- Hearsay Evidence

4. DOCUMENTS • SAME 3-PART RULE • MOST DOCUMENTS CONTAIN HEARSAY – NEED TO BE REDACTED Chap. 3 -- Hearsay Evidence

5. BIG EXCEPTION: THE OPPOSING PARTY’S STATEMENTS • STATEMENTS MADE BY PARTY “A”, OFFERED IN EVIDENCE BY PARTY “B”: • FROM ANY WITNESS KNOWLEDGEABLE ABOUT PARTY A’S STATEMENT • ARE “NOT HEARSAY”R. 801(d) Chap. 3 -- Hearsay Evidence

6. PARTY “A”s FACTUAL WRITINGS • ARE NOT HEARSAY IF OFFERED IN EVIDENCE BY PARTY “B” • ARE HEARSAY IF OFFERED IN EVIDENCE BY PARTY “A” !! • WHY? R. 801(d) Chap. 3 -- Hearsay Evidence

7. NON-PARTY UTTERANCES: • “HE SAID” “SHE TOLD ME” • THESE ARE LIKELY TO CONTAIN STATEMENTS OF FACT • ARE LIKELY TO FIT THE HEARSAY DEFINITION Chap. 3 -- Hearsay Evidence

8. HOWEVER: • NOT ALL OUT-OF-COURT HUMAN UTTERANCES CONTAIN STATEMENTS OF FACT: • COMMANDS (“GET OUT OF HERE” “STUDY THIS WELL”) DO NOT STATE FACTS • EXCLAMATIONS (“WOW!” “OMG”) DO NOT STATE FACTS • SO THESE ARE NOT HEARSAY PROBLEMS Chap. 3 -- Hearsay Evidence

9. EXAMPLES OF OUT-OF-COURT “STATEMENTS” • “IT’S SUNNY HERE” RECITES A FACT • “IT RAINED YESTERDAY” RECITES A FACT • “I LOVE YOU” RECITES A FACT • THESE ARE POTENTIALLY HEARSAY IF A WITNESS LATER TESTIFIES TO WHAT WAS SAID Chap. 3 -- Hearsay Evidence

10. THE FACTS CAN AND SHOULD BE TESTIFIED TO BY A LIVE WITNESS WITH KNOWLEDGE • WITNESS CAN TESTIFY “WE GOT SOME FLOODING.” NOT: “SHE SAID WE GOT SOME FLOODING” • WITNESS CAN TESTIFY “WE MET ON THE SUBJECT OF A MERGER.” NOT : “THE MEMO STATED THAT WE MET ON THE SUBJECT OF A MERGER” Chap. 3 -- Hearsay Evidence

11. THIS IS THE WHOLE POINT OF THE HEARSAY RULE • IT’S THE MANNER OF PROVING A FACT THAT IS BLOCKED BY THE HEARSAY RULE, NOT THE FACT ITSELF • WE WANT TO HEAR THE FACTS LIVE, AND SUBJECT TO CROSS-EXAMINATION Chap. 3 -- Hearsay Evidence

12. CONDUCT • A PERSON’S CONDUCT IS OFTEN HIGHLY RELEVANT TO THE CASE • BUT IS THAT CONDUCT A “STATEMENT”? Chap. 3 -- Hearsay Evidence

13. WHEN IS OUT-OF-COURT CONDUCT A “STATEMENT”? • CONDUCT CAN BE REGARDED AS A “STATEMENT” FOR HEARSAY PURPOSES, ONLY IF: • THE ACTOR’S PRIMARY PURPOSE WAS TO NARRATE (RECITE) FACTS[R 801 (a)] >>> Chap. 3 -- Hearsay Evidence

14. THE VAST MAJORITY OF HUMAN CONDUCT (99%) IS NOT DONE PRIMARILY FOR THIS PURPOSE • IT IS DONE MAINLY TO GET ON WITH LIFE! • THEREFORE, CONDUCT IS RARELY TREATED AS A “STATEMENT”; HENCE NOT HEARSAY; OK FOR A WITNESS TO TESTIFY ABOUT IT Chap. 3 -- Hearsay Evidence

15. EXAMPLES OF THE 1% CONDUCT THAT IS A STATEMENT: • NOD OR SHAKE OF HEAD FOR YES OR NO • POINTING TO IDENTIFY A PERSON, PLACE, OR THING • REENACTMENT • SIGN LANGUAGE FOR FACTS Chap. 3 -- Hearsay Evidence

16. CLOSE CALLS: • IF IN DOUBT, ASSUME THE ACTOR’S PRIME PURPOSE WAS NOT TO COMMUNICATE FACTS Chap. 3 -- Hearsay Evidence

17. EXAMPLE OF CONDUCT THAT IS NOT A STATEMENT • ACTION ON MARINE INSURANCE POLICY • MAIN ISSUE: SEAWORTHINESS OF VESSEL LATER LOST AT SEA • EVIDENCE: TESTIMONY THAT AN EXPERIENCED CAPTAIN INSPECTED THOROUGHLY, THEN TOOK HIS FAMILY ABOARD AND SET SAIL • >>> Chap. 3 -- Hearsay Evidence

18. THE CAPTAIN WAS NOT MAKING A STATEMENT • HE WAS ACTING IN A CERTAIN WAY, HIGHLY RELEVANT TO THE CASE – CONDUCT, NOT A STATEMENT • RECALL: NO STATEMENT = NO HEARSAY Chap. 3 -- Hearsay Evidence

19. FURTHER EXAMPLES OF RELEVANT CONDUCT THAT IS NOT A STATEMENT (NON-NARRATIVE) • PROMOTING A LIEUTENANT TO CAPTAIN • GIVING AN EMPLOYEE A BONUS • HOSPITAL PUTTING PATIENT IN I.C.U. Chap. 3 -- Hearsay Evidence

20. SOME CLOSE CALLS • SHE THROWS WINE IN HIS FACE, AND LEAVES THE RESTAURANT • [THIS ONE MAY BE ARGUABLE. IS HER MAIN INTENT TO NARRATE A FACT??] • THE JUDGE DECIDES THE PRIMARY PURPOSE Chap. 3 -- Hearsay Evidence

21. IF SHE SAID “YOU ARE A JERK” • THAT IS A STATEMENT • POTENTIALLY HEARSAY [DEPENDING ON WHY THE TESTIMONY IS NOW OFFERED] Chap. 3 -- Hearsay Evidence

22. WORDS THAT ADD MEANING TO CONDUCT ARE NOT STATEMENTS(ALTHOUGH FACIALLY THEY LOOK LIKE STATEMENTS) • EXAMPLE1: HANDING OVER CASH, AND SAYING “THIS IS FOR THE JULY RENT” • EXAMPLE2: HANDING CAR KEYS, AND SAYING “IT’S IN THE GARAGE” • WE TREAT THESE TOTALLY AS CONDUCT. NO HEARSAY INVOLVED. Chap. 3 -- Hearsay Evidence

23. HANDLING VERY SHORT SETS OF WORDS • “CORONA” ON BEER MUG • “PORSCHE” ON CAR • “PLAZA CLUB RESTAURANT” • LAUNDRY MARK “JAN” • “UNIVERSITY OF HOUSTON” ON ENTRANCEWAY • THESE ARE REGARDED AS MERE MARKERS, NOT STATEMENTS • THEREFORE CANNOT BE HEARSAY Chap. 3 -- Hearsay Evidence

24. SOME CLOSE CALLS? Chap. 3 -- Hearsay Evidence

25. Chap. 3 -- Hearsay Evidence

26. PROBLEMS/CASES • 3A • 3B • CHECK Chap. 3 -- Hearsay Evidence

27. “OFFERED TO PROVE THE TRUTH OF THE STATEMENT” • I.E., TO ESTABLISH THAT THE STATEMENT WAS CORRECT • SOME OUT-OF-COURT STATEMENTS ARE ELICITED AT TRIAL FOR OTHER REASONS, AND ARE THEREFORE NOT HEARSAY PER R. 802 Chap. 3 -- Hearsay Evidence

28. EXAMPLES OF USING STATEMENTS FOR OTHER PURPOSES • PROVING THE LISTENER’S STATE OF MIND, WHERE STATE OF MIND MATTERS: • TESTIMONY THAT X SAID TO D: “I HAVE A GUN THAT IS POINTED AT YOU” • SELF-DEFENSE REQUIRES PROOF OF D’s STATE OF MIND • TRUTH/CORRECTNESS OF THE STATEMENT HERE HAS NOTHING TO DO WITH IT! Chap. 3 -- Hearsay Evidence

29. WORDS THAT ARE THEMSELVES A NECESSARY ELEMENT OF THE CASE • FALSE OFFICIAL STATEMENT • OFFER AND ACCEPTANCE IN A CONTRACT CASE • WARRANTIES IN A BREACH OF WARRANTY CASE • SOMETIMES CALLED “WORDS THAT ARE AN OPERATIVE FACT” • M-K CALL THIS A “VERBAL ACT” >>> Chap. 3 -- Hearsay Evidence

30. FOR THE LAWYER OFFERING THESE, TRUTHFULNESS OF THE WORDS DOES NOT MATTER • SAYING THEM MATTERS Chap. 3 -- Hearsay Evidence

31. THE TWO KEYS: • NO STATEMENT = NO HEARSAY • NOT OFFERED TO ESTABLISH TRUTH OF THE STATEMENT = NOT HEARSAY Chap. 3 -- Hearsay Evidence

32. PROBLEMS/CASES • 3C • 3D • 3E • 3F • 3G • 3H (cont’d) Chap. 3 -- Hearsay Evidence

33. 3J • BETTS Chap. 3 -- Hearsay Evidence

34. THE HEARSAY QUIZ IN M-K[pp. 161-164] • DO APPLY THE DEFINITIONAL EXCEPTIONS IN R801(d) WHERE APPLICABLE • [SOME LAWYERS START WITH 801(d) ANALYSIS, TO SAVE TIME • IF YOU FIND IT IN 801(d), IT CAN’T BE HEARSAY • NO WORRY ABOUT WHY IT’S OFFERED] Chap. 3 -- Hearsay Evidence

35. SUGGESTED MENTAL SEQUENCE • CHECK 801(d) – NOT HEARSAY • IS THE WIT. TESTIFYING ABOUT A “STATEMENT”? • IS THE TEST. OFFERED TO PROVE THAT THE STMT. WAS TRUE? • IF SO, IT IS BRINGING IN HEARSAY • IS THERE AN APPLICABLE EXCEPTION TO THE RULE AGAINST HEARSAY EVIDENCE? Chap. 3 -- Hearsay Evidence